After I wrote my preliminary reactions post the morning the Boumediene case was issued, I was surprised there was not more discussion of this landmark case on the Net. Well, the trickle has now become a torrent, and it will only increase now that the case is in the Supreme Court.

Most of the Internet discussion has centered on the primary question that Judge Randolph's opinion discussed -- whether there are any pre-1789 British analogies to the aliens being detained at Guantanamo and, if so, what those precedents show about whether such aliens would have been entitled to petition for a writ of habeas corpus as of 1789.

Here's Jonathan Hafetz (al-Marri's counsel in the CTA4 proceedings), on Balkinization itself. Pete Shindel has a post focusing especially on the cases from India cited in Judge Rogers's dissent. Pete relies heavily on this superlative amicus brief filed by legal historians in the Rasul case in the October 2003 Term. [Disclosure: The principal attorney on that brief is my colleague, the legal historian Jim Oldham.] I also highly recommend, on the same historical question, Part II of the Argument in this brief filed in the al-Marri case by Gerry Neuman, Harold Koh and Sarah Cleveland.

In this post, Andrew Kent takes a different view -- that "the better reading of the available historical materials suggests that the common law English writ would not have been available to aliens, especially enemy combatants or prisoners of war, in foreign territory outside the dominions of the British Crown." Kent concedes, however, that "that conclusion is not free from doubt, given the paucity and opacity of the English sources" -- "the English (and American) cases discussing these issues are few, and the case reports brief and sketchy, making it difficult to say with certainty exactly what English law was[, and] more generally, it is a mistake to think that British “constitutional” law – made up of an uncertain amalgam of statutes, customs, practices, judicial decisions, and theories drawn from famous historical episodes – had wholly fixed and knowable content. . . . Certainly the few English cases do not definitively resolve the issues and tell us the exact content of the common law writ in 1789. And the translation of all of this to the American context is quite difficult." Based on an article of his in the Georgetown Law Journal, Kent proposes that the question is better answered by reference to the "text, structure and original eighteenth century meaning of the Suspension Clause and the larger Constitution of which it is an integral part." Based on that analysis, Kent takes a narrow view of the Constitution's protection of habeas rights for aliens, but even under his test, "there’s a reasonable but not overwhelming case to be made that . . . Guantanamo would be U.S. territory and the writ would be available."

Andrew Kent's analysis raises two red herrings that need to be steadfastly resisted. One, noted by Peter Spiro, is the claim that eighteenth century history tells us something about the territorial scope of the Constitution with regard to aliens. The fundamental defect with this argument is that it ignores the fact that prior to the twentienth century the Constitution was regarded as territorially limited even with regard to citizens. Of course, citizens can also raise national security and law enforcement concerns abroad. If early practice is no longer controlling with regard to citizens, then it does not tell us what to do about aliens.

The second is the fallacy that the choice is between a Suspension Clause that protects the writ "as it existed" in 1789, and an evolving Suspension Clause that protects the writ "as it existed" as of some later date. This is an absurdly limited statement of the possibilities. No other constitutional provision is interpreted that way. The Suspension Clause should be interpreted using history as a source of insight into its purpose, and evolving understandings of the relationship between the writ and the rest of an evolving constitutional system to determine which later developments are of constitutional dimension. The false dichotomy presented by Justice Scalia in his dissent in St. Cyr is merely an effort at distraction.

Michael Dorf's reaction is similar to Gerry Neuman's. He questions the Randolph opinion's history, but then emphasizes that even if the closest analogues in pre-1789 British law would not point to habeas rights for these detainees, that would hardly be the end of the question:

Nor should that be surprising, for many constitutional provisions mean something different today from what they meant when they were was first adopted. Modern conceptions of free speech, equal protection, interstate commerce, and a host of other constitutional provisions reflect both changed circumstances and changed values. While the text and original understanding of the Constitution are almost always the starting point for analysis of the meaning of any constitutional provision, they are rarely the end point.

Perhaps the distinction between U.S. (or British) territory and foreign territory once made sense as a means of parceling out the jurisdiction of Eighteenth Century courts, but given modern methods of transportation and communication, it makes little sense today. Accordingly, there is no good reason to limit the scope of habeas--absent its valid suspension--to persons held within the borders of the United States or its territories. Yet the Boumediene majority treats the scope of the writ in 1789 as reflecting the full modern understanding.

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

With respect to the Suspension Clause, we might begin with the core function of habeas--to prevent arbitrary deprivations of liberty--and the exigencies of warfare. Justice Kennedy zeroed in on these two factors in a separate opinion in the Rasul case. He wrote: "Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker."

As I wrote in my original post, I think that if and when the Supreme Court decides the question, it will hold that the GTMO aliens have constitutional habeas rights -- Justice Kennedy's opinions in Rasul and Verdugo-Urquidez strongly suggest as much. Therefore, the outcome of the case will likely turn on the other prong of the government's argument, which is the claim that the D.C. Circuit review of CSRT and military commission decisions is an adequate substitute for habeas. (Head's up to bloggers: We could use more analysis of that question. It's quite surprising that Judge Randolph did not reach it, since he must have known that his habeas holding would likely not withstand review in the SCOTUS, and because Judge Rogers made such a strong case in dissent that D.C. Circuit review is not an adequate substitute for habeas.)

And speaking of the Supreme Court, my colleague Neal Katyal has filed a cert. petition before judgment on behalf of Salim Hamdan and a Canadian detainee, Omar Khadr -- two detainees who are also subject to military commission proceedings. (The petition urges the Court to grant both it and the forthcoming Boumediene petition(s), because the military commission setting in the Hamdan/Khadr case raises distinct questions not present in the cases challenging detention as such.) The case is No. 06-1169. The Hamdan petition has a terrific summary of the case against Judge Randolph's history (pages 13-14), and I especially recommend its discussion of why Eisentrager is not controlling on the question (pages 15-18). The petition also addresses the adequacy of the D.C. circuit review (pages 21-23). Hamdan has also made a motion for the Court to expedite proceedings so that the case could be considered this Term. Apparently the SG has agreed to expedite the petition-stage proceedings in the Boumediene case itself, but has not consented to similar expedited treatment of Hamdan. The Court will consider Hamdan's motion to expedite tomorrow morning.

It's quite surprising that Judge Randolph did not reach it, since he must have known that his habeas holding would likely not withstand review in the SCOTUS

Was that perhaps in hopes that the SCOTUS would remand for consideration of that issue, rather than decide it itself?

I don't understand the procedural requirements here, quite frankly, but if remand were possible, that would tie up the issue for several more months at least, which is typical of what Bush's supporters seek.

If the Supremes follow the lead of the DC Circuit and hold that the Suspension Clause incorporated by implication the right to habeas corpus as it existed when the Constitution was enacted, then I do not see how the petitioners win so long as the Court stays within the law.

It is interesting to note that none of these observers offers a single case which could have been incorporated in to the Constitution via the Suppression Clause where a British or American court extended habeas corpus review to a foreign prisoner of war challenging his detention for the duration of hostilities. At best, these commentators call the law at the time "murky."

It has been suggested that the scope of common law habeas corpus was unlimited unless expressly curbed by a court decision. However, common law does not work that way. The scope of common law at any particular time is affirmatively created by previous court decisions. Thus, the boundaries of the common law are created by and limited to previous decisions.

In short, if there were no decisions extending habeas to POWs in 1798, then there is no corresponding constitutional right.

Thus, the commentators who support the policy goal of extending habeas corpus to the Gitmo prisoners fall back to the usual calls for the Court to rewrite the Constitution to comport with "modern" (read their) understanding of how the Constitution should read.

Gary Neuman argues:

The second is the fallacy that the choice is between a Suspension Clause that protects the writ "as it existed" in 1789, and an evolving Suspension Clause that protects the writ "as it existed" as of some later date. This is an absurdly limited statement of the possibilities. No other constitutional provision is interpreted that way. The Suspension Clause should be interpreted using history as a source of insight into its purpose, and evolving understandings of the relationship between the writ and the rest of an evolving constitutional system to determine which later developments are of constitutional dimension.

There are multiple problems with this argument:

To start, the Constitution does not offer an express right to habeas corpus which we can parse textually or rewrite under "evolving standards." Rather, unlike other rights granted in the Constitution, the Suspension Clause implies that the Constitution incorporates a right to habeas corpus. If the habeas right is incorporated, the issue is from where the right was taken. Given that the Supremes early on admitted that the federal courts did not have common law power to set the scope of habeas corpus, the only two sources are the state of the writ in 1798 or the state of the writ today as determined by Congress by statute as amended by the DTA and MCA.

Moreover, we are not presented with a novel fact setting which would require the Constitution to be interpreted in another way to account for changing circumstances. The issue raised by the Gitmo detainees is as old as warfare. Indeed, prior to 1798, the courts had considered and rejected petitions by foreign POWs seeking to use the writ to challenge their wartime detentions.

Finally, the fact that the Court has rewritten the Constitution and issued outlaw rulings in the past does not mean that the Court could properly do so then or now. Requesting that the Court do so merely exposes the legal bankruptcy of the proponents' arguments.

With respect to the Suspension Clause, we might begin with the core function of habeas--to prevent arbitrary deprivations of liberty--and the exigencies of warfare. Justice Kennedy zeroed in on these two factors in a separate opinion in the Rasul case. He wrote: "Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker."...Therefore, the outcome of the case will likely turn on the other prong of the government's argument, which is the claim that the D.C. Circuit review of CSRT and military commission decisions is an adequate substitute for habeas.

This quote reveals the inexperience and incompetence of civilian courts to determine the status of prisoners of war and demonstrates why status determinations should be left with the military, where it has resided since the dawn of the Republic.

In every lengthy war which we have fought, prisoners were routinely held for months or years until the hostilities ended. The purpose of wartime detention of captured enemy combatants is to keep them from returning to their former occupation of killing our soldiers and civilians. Thus, the term of detention is determined by how long the enemy continues to war on the United States, not on an arbitrary matter of weeks set forth by Justice Kennedy.

Your continued efforts at proof through repeated assertion are as likely to fail in this thread as they did in the last. You state:

none of these observers offers a single case which could have been incorporated in to the Constitution via the Suppression Clause where a British or American court extended habeas corpus review to a foreign prisoner of war challenging his detention for the duration of hostilities

This is rather beside the point (even leaving aside your erroneous view of the Gitmo detainees as 'prisoners of war'), given that neither you nor any other opponent of extending habeas rights to the detainees can point to a single pre-1789 case denying habeas rights to an alleged enemy combatant. The fact that no such case was ever presented to (or at least resolved by) a court during that era means only that we must extrapolate from other available evidence to determine whether the 1789 writ would have reached the Gitmo detainees.

As I and others have explained elsewhere, and as the legal historians' brief and the Hamdan-Khadr petition exhaustively demonstrate, the great weight of the historical evidence indicates that habeas corpus rights would have extended to the Gitmo detainees. Modern-day British courts agree, as the decision in The Queen (on the application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ. 1598, [2002] All E.R. (D.) 70 (Nov.) indicates.

If history were on your side, the panel majority in Boumediene would not have been forced to engage in such brazen and sloppy revisionism in order to reach its desired result.

But after he claims unresolvable ambiguity on what he admits are the core questions, he comes out wiht this:

There is perhaps a better way to think about the issue – better methodologically because it gives primacy to the written text of the Constitution, and better substantively because it allows Congress instead of courts to make the relevant policy choices.

The whole big question is whether Congress is constitutionally allowed to "make the relevant policy choices", regardless of whether one thinks that a 'good thing' or not....

More of Kent's 'pragmatism':

The [Suspension] Clause allows suspension only in cases of "Rebellion or Invasion." Both terms refer to conflicts internal to the country. If the only two permissible triggers for suspension are internal events, it follows that the writ cannot be suspended based on purely external threats.... If courts extend constitutional rights to aliens abroad that are enforceable through habeas, and if the availability of some habeas review is found to be constitutionally required (that is, protected from "suspension"), there could occur situations where the lack of a domestic invasion or rebellion prevent suspension, even if the political branches correctly determined that "the public Safety ... require[d] it."

The Constitution places two restrictions on the suspension of habeas corpus. 1): that the situation be of such imminence and proximinty of danger to the nation that such an extraordinary action should be allowed ("unless when in Cases of Rebellion or Invasion...") and then only when the severity of this threat is sufficient ("... the public Safety may require it"). Danger alone is not sufficient. Invasion is neither. Kent here would like to delete this last requirement of "rebellion or invasion".

Kent goes on:

In this situation, the Judiciary would be encroaching on the primary province of the Executive and Congress: the political branches are textually and structurally given the responsibility for national protection, especially beyond the borders of the United States. This structural reasoning provides a way to think about the availability of the writ outside the fifty states of the United States. Assuming that the writ should not be available anywhere that the political branches could not, if the public safety required, temporarily suspend it, the writ should only be available in territory over which the United States exercises such pervasive and persistent sovereignty that a hostile military incursion could be fairly described as an "invasion" vis-à-vis the United States, or an armed insurrection could fairly be described as a "rebellion" vis-à-vis the United States.

But what Kent is arguing is that the Suspension Clause a priori should be read to understand that it is already suspended (at least as far as the Constitution goes) in certain circumstances (not meeting the two prongs of the Suspension Clause).

Not to mention, there's other reasons for habeas corpus petitions than just (alleged) "enemy aliens" seeking to overthrow the U.S. from afar. On Kent's reasoning, the only reason for territory to allow habeas would be if it is of such significant military and national interest that then the political branches would be able to suspend it. This would be a preverse reading of the intent of the Great Writ.

Footnote 12 of the Hamdan-Khadr petition does explain why the petitioners' claim that the King's Bench in Schiever and Three Spanish Sailors determined the status of the those petitioners as prisoners of war:

Notwithstanding Rasul, the Hamdan district court deemed it unclear whether Schiever ultimately dismissed the habeas petition on jurisdictional or substantive grounds. App. 12a-13a. But if Schiever was jurisdictional, the English court would have simplyaccepted the Crown’s assertion that the prisoner was an enemy alien and dismissed the petition outright. Instead, the court reviewed the evidence presented by the petitioner before concluding that he was lawfully detained. 97 Eng. Rep. at 552. The Three Spanish Sailors’ Case, 96 Eng. Rep. 775 (C.P. 1779), provides another example of a prisoner of war invoking the writ. As in Schiever, the court maintained jurisdiction to review the evidence, noting that the prisoners, “upon their own showing, are alien enemies and prisoners of war.” Id.at 776.

This is an exceedingly weak indirect argument.

The fact that the Court read the petitions with the testimony of the petitioners before summarily dismissing them on the grounds that habeas corpus does not reach POWs hardly means that the Courts made a factual determination on the propriety of the petitioner's designation as POWs. Indeed, the Court could not summarily dismiss the petitions without knowing that the petitioners were alleging.

If the court made a finding as the to propriety of the petitioner's designation as POWs, the Gitmo detainees would be leading their brief with a quote of that finding.

Holding that aliens outside the U.S. and its territories do in fact have individual constitutional rights would be vastly consequential, impacting and – I believe, hampering – law enforcement, intelligence, military and diplomatic functions of the U.S. government in myriad, significant ways.

If the Supremes follow the lead of the DC Circuit and hold that the Suspension Clause incorporated by implication the right to habeas corpus as it existed when the Constitution was enacted, then I do not see how the petitioners win so long as the Court stays within the law.

It has been suggested that the scope of common law habeas corpus was unlimited unless expressly curbed by a court decision. However, common law does not work that way.

No one has made such a claim. OTOH, we have "Bart" claiming that no such "common law habeas" rights exist until some court "affirmatively" asserts them (see here: "Habeas corpus was a product of common law. The writ was not unlimited under the common law of that time. Rather, its scope was affirmatively determined by prior decisions."

The issue raised by the Gitmo detainees is as old as warfare. Indeed, prior to 1798, the courts had considered and rejected petitions by foreign POWs seeking to use the writ to challenge their wartime detentions.

This quote reveals the inexperience and incompetence of civilian courts to determine the status of prisoners of war and demonstrates why status determinations should be left with the military, where it has resided since the dawn of the Republic.

Footnote 12 of the Hamdan-Khadr petition does explain why the petitioners' claim that the King's Bench in Schiever and Three Spanish Sailors determined the status of the those petitioners as prisoners of war:

[Having a bad day, "Bart"? First the "Suppression Clause", and now this gobbledygook? LOL....]

[from the Hamdan-Khadr brief]: Notwithstanding Rasul, the Hamdan district court deemed it unclear whether Schiever ultimately dismissed the habeas petition on jurisdictional or substantive grounds. App. 12a-13a. But if Schiever was jurisdictional, the English court would have simplyaccepted the Crown’s assertion that the prisoner was an enemy alien and dismissed the petition outright. Instead, the court reviewed the evidence presented by the petitioner before concluding that he was lawfully detained. 97 Eng. Rep. at 552. The Three Spanish Sailors’ Case, 96 Eng. Rep. 775 (C.P. 1779), provides another example of a prisoner of war invoking the writ. As in Schiever, the court maintained jurisdiction to review the evidence, noting that the prisoners, “upon their own showing, are alien enemies and prisoners of war.” Id.at 776.

["Bart"]: This is an exceedingly weak indirect argument.

No. It is not at all "indirect".

["Bart"]: The fact that the Court read the petitions with the testimony of the petitioners before summarily dismissing them on the grounds that habeas corpus does not reach POWs hardly means that the Courts made a factual determination on the propriety of the petitioner's designation as POWs. Indeed, the Court could not summarily dismiss the petitions without knowing that the petitioners were alleging.

Once again, hard day? Or drinking early, perhaps....

As stated by the quote from the brief, the court made it a point to note that the petitioners, "upon their own showing, are alien enemies and prisoners of war." And that was hardly what they were alleging. Certainly in the case of Schiever he was maintaining the exact opposite (although the court decided differently).

You're claiming a rationale that the courts unarguably did not state (that the petitions were denied because of their designation as POWs), while the cases themselves indicate through the circumstances, the pleadings, the hearing itself, and the language, that the courts in fact looked at the facts of the case for themselves; precisely what the Boumediene and Hamdan petitioners are seeking.

Bart yesterday: ... the quotes which are provided in the court opinions considering these cases make it appear that the Courts simply judicially recognized that the Crown had designated the petitioner as a POW and then dismissed the petitions. ... The Court simply accepted the designation given by the Crown.

Today, after being confronted with details from Schiever's case showing that the court there did not "dismiss" the petition solely on the Crown's designation, but rather examined the sworn statement of the prisoner (not merely the petition itself) Bart changes his tune:

Indeed, the Court could not summarily dismiss the petitions without knowing that the petitioners were alleging.

But that is precisely what Bart claimed 24 hours ago that the Schiever court had done!

The sworn statements examined by the Schiever court were evidence, not just claims contained in the petition itself. That evidence, not just the finding of the Crown, persuaded the court there to deny him the relief he sought. As the Boumediene opinion itself observed, "The court denied [Schiever] relief because it found ample evidence that he was a prisoner of war."

But Schiever got his day in court, which found jurisdiction to take and consider the evidence. The court denied him relief, but it did not deny him review. And habeas review -- the scope of the writ itself, as protected by the Suspension Clause -- is what is at issue in the Boumediene case.

Regarding your statement on "public safety." To a non-lawyer, it looks like your argument can be taken further. That the obvious intent is that habeas can be suspended only because of a breakdown in law and order - non-functioning courts, military operations in the theater, roaming mobs. Basically, a state of emergency. So obviously, it's not applicable in a war-zone, and it's superseded for POW's.

But Gitmo appears fairly orderly, and the inmates have not been declared POWs.

Regarding your statement on "public safety." To a non-lawyer, it looks like your argument can be taken further....

Not sure you got my drift.

... That the obvious intent is that habeas can be suspended only because of a breakdown in law and order - non-functioning courts, military operations in the theater, roaming mobs. Basically, a state of emergency. So obviously, it's not applicable in a war-zone, and it's superseded for POW's.

If the courts are "non-functioning", doesn't make much sense to ask whether they can hear habeas petitions. If there are "roaming mobs", it may well be that the right to habeas corpus may be even more important.

How would you "cure" a breakdown in "law and order" by curtailing one's rights under it?

No, I think the emphasis is on imminent peril to the nation itself. A dangerous local environment can hardly be fixed by the curtailment of the reach of the legal system.

Bart yesterday: ... the quotes which are provided in the court opinions considering these cases make it appear that the Courts simply judicially recognized that the Crown had designated the petitioner as a POW and then dismissed the petitions. ... The Court simply accepted the designation given by the Crown.

Today, after being confronted with details from Schiever's case showing that the court there did not "dismiss" the petition solely on the Crown's designation, but rather examined the sworn statement of the prisoner (not merely the petition itself)...

Whoa! Time for a fact check.

1) I based my post above on actual quotes from these cases provided by the Courts. As I pointed out above, Hamdan's attorneys did not provide any further "details" in the form of actual quotes. Rather, they simply regurgitated their contention of what these cases stand for.

2) Do you have any evidence at all that the petition and the sworn statement of the prisoner were not part of one pleading?

Bart changes his tune: Indeed, the Court could not summarily dismiss the petitions without knowing that the petitioners were alleging. But that is precisely what Bart claimed 24 hours ago that the Schiever court had done!

What exactly do you claim is contradictory about my posts?

When a court receives a petition for a writ, the court reads the petition, including all attachments, to find out what the petitioner is seeking. Then the court will read the government's response.

At this point, the court has not granted the petitioner or the government anything by simply reading what was submitted.

If the court thinks that the petitioner does not have standing to bring the petition based on the pleadings, the court then writes an opinion summarily dismissing the petition. This appears to be the case in Schiever and Three Spanish Sailors.

The fact that the court may have read Schiever's petition and the most likely attached sworn statement does not mean that the Court has made a determination of fact that the Crown has properly designated Schiever as a POW. If the court had done so, the opinion would almost certainly contain this factual analysis. Given that the Gitmo petitioners, various historians and the courts who have read the opinions have not quoted any such analysis, it is more than a stretch for the Gitmo petitioners to claim that the King's Bench performed the analysis in secret.

But Schiever got his day in court...

Only to the extent that every other jail house lawyer who files an unfounded petition which the court then summarily dismisses.

...which found jurisdiction to take and consider the evidence.

The quotes from the King's Bench state just the opposite and make it very clear that the court has no habeas jurisdiction over POWs.

You are free to provide a quote from the King's Bench in Schiever or Three Spanish Sailors which states that they have habeas jurisdiction to determine if the Crown properly designated petitioners as POWs. If the KB had made such a holding in its opinion, the Gitmo petitioners would have it quoted in the first paragraph of their brief. Petitioners reluctance to provide quotes to back up their arguments makes me exceedingly leery of those arguments.

Do any of the professors here have access to the Schiever and Three Spanish Sailors written opinions? If so, could you post the scanned opinions or a links to them so we can dispense with the conjecture and read what the King's Bench actually wrote?

I was going along the argument of the issue of sovereignty, that the state can't be expected to apply habeas rights where they don't control the territory. So, invasion and rebellion where the public safety is imperiled make practical application impossible, therefore there can be no legal right to the impossible. It seems to fit with the riff.

For an example, someone is imprisoned in Georgia, and then a rebellion breaks out. If a lawyer for that person petitions for habeas, the state can simply say no, we can't do it now, and we won't try. Or they manage to catch the leader of the rebellion while that rebellion is acutely under way. The state can refuse temporarily.

My point is that a common reading appears that suspension is an emergency measure. Particularly thinking about it in 18th century terms, attempting to hold court on a habeas petition while the city is under siege, would seem to be impractical. Suspending habeas does not cure the breakdown in law-n-order; it recognizes it as a reality.

Bart: Do any of the professors here have access to the Schiever and Three Spanish Sailors written opinions? If so, could you post the scanned opinions or a links to them so we can dispense with the conjecture and read what the King's Bench actually wrote?

I am not a professor, but my general understanding is that the "written opinions" you seek do not exist. Instead, the record that survives consists more of what today we would call headnotes, although these summary reports may include some fragmentary quotes from the bench.

Ultimately, what will matter today is not how you and I construe these old English cases, but how our contemporary courts do. So far, the record I am aware of is this:

1) The Supreme Court in Rasul cited the Schiever case to stand for this: "(reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France)."

2) The D.C. Circuit opinion in Boumediene said without controversy about Schiever: "The court denied him relief because it found ample evidence that he was a prisoner of war." That certainly does not describe "summary dismissal" for lack of jurisdiction, or denial of review, but an adverse holding on the merits.

3) According to the new Hamdan-Khadr petition linked above, "the Hamdan district court deemed it unclear whether Schiever ultimately dismissed the habeas petition on jurisdictional or substantive grounds." That's the closest thing I know of to support for your position.

I am not aware that the government even asserts in any detainee case what you do, that the English cases (Schiever and Three Spanish Sailors) were dismissed for lack of jurisdiction because the petitioners were prisoners of war. Rather, the government distinguishes Guantanamo from them because of geographic sovereignty issues.

Bart: Do any of the professors here have access to the Schiever and Three Spanish Sailors written opinions? If so, could you post the scanned opinions or a links to them so we can dispense with the conjecture and read what the King's Bench actually wrote?

I am not a professor, but my general understanding is that the "written opinions" you seek do not exist. Instead, the record that survives consists more of what today we would call headnotes, although these summary reports may include some fragmentary quotes from the bench.

In that case, I would enjoy reviewing the surviving writings which our courts are reviewing today.

These quotes from the King's Bench are pretty self explanatory:

In The Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), the King’s Bench denied the sailors’ petitions because they were 'alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus.' Id. at 776." Boumediene, et al. v. Bush, No. 05-5064 *13 (D.C. Cir. 2007).

In Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759), the King's Bench denied the petition because "[petitioner] is the King's prisoner of war, and we have nothing to in that case, nor can we grant habeas corpus to remove prisoners of war." Hamdan v. Rumsfeld, No. 04-1519 *17 n.11 (D.D.C. 2006).

Did the contemporaries of King's Bench record any similarly categorical quotes where the court claimed habeas corpus jurisdiction to determine if the Crown properly designated petitioners as prisoners of war?

The Gitmo petitioners have offered none and inquiring minds want to know.

The "categorical" quotes you present to me do not describe denial of review, but denial of relief. And they all beg the question about how the courts determined the prisoners' status in the first place. Nothing says they took the Crown's word for it; to the contrary, they relied upon evidence obtained directly from the prisoners.

There is no dispute that the court denied relief because Schiever was a prisoner of war. But we do know from other reporter quotes that the court attributed its predicate finding that he was a prisoner of war to evidence -- his "own showing" or "own shewing," depending on which version you prefer -- not the Crown's determination. The Three Spanish Sailors similarly described themselves.

What the detainees are seeking today, at a minimum, is a review to make such an independent finding. If the result of such review is that they are, in fact, enemy combatants, they are not guaranteed relief.

Again, your interpretatation -- however arguable -- has been implicitly rejected either by the Supreme Court (when ruling for Rasul) and the D.C. Circuit (when ruling against Boumediene), and the government does not even make your argument in those courts.

Enjoy your status as the lone keeper of the truth. You are free to make all the arguments you want. But I don't think you are free to state your interpetation as if it is settled law, as you so frequently do. In fact, our own courts disagree with you.

If the court thinks that the petitioner does not have standing to bring the petition based on the pleadings, the court then writes an opinion summarily dismissing the petition. This appears to be the case in Schiever and Three Spanish Sailors.

"This case related to a Swedish sailor detained in a Liverpoolgaol having been captured aboard a French ship. AlthoughEngland and France were at war, Sweden was a neutralpower and the applicant sought a writ of habeas corpuscontending that he had been forced to serve on the Frenchvessel under duress. Although the Reporter queried thecorrectness of the decision where duress was involved, theCourt held that on Schiever’s “own shewing” he was “clearlya prisoner of war, and lawfully detained as such,” 2 Burr. at766, 97 Eng. Rep. at 552, and the application for the writ wasrefused. The Court decided the case on the evidence presentedand not on the basis of any assertion that Schiever was anenemy alien. There was no suggestion that the Court lackedjurisdiction to consider the evidence and determine Schiever’sstatus on the basis of that evidence."

Jeez. Do we have to wrap it around 2x4 and beat "Bart" around the head with it?!?!?

Page cites to the Schiever case included. If "Bart" wants to call these distinguished lawyers liars, he ought to trot out the quotes which prove his own contention that the court accepted the Crown's designation of Schiever as a "prisoner of war" absent any factual examination and summarily dismissed the petition.

And here, the Three Spanish Sailors (from the brief):

"Anonymous—The Case of Three Spanish Sailors, 2 Black.W. 1324, 96 Eng. Rep. 775 (K.B. 1779):In this case three Spanish sailors asserted that they had beencaptured as prisoners of war on board a Spanish privateer andcarried to Jamaica. They had then been persuaded to enterinto service on board a merchant vessel and promised wagesand their release on the vessel’s return to England. On arrivalin England, however, the Captain of the vessel, a CaptainLush, refused to pay the agreed wages and instead handed themen over to the Commander of a naval vessel as prisoners ofwar. The Court refused the subsequent application for a writof habeas corpus but, again, did so on the basis of the evidencepresented. The Court rejected the application in thefollowing terms “these men, upon their own shewing, arealien enemies and prisoners of war, and therefore not entitledto any of the privileges of Englishmen; much less to be set atliberty on a habeas corpus. The story, as related by them, isnot much to the credit of Captain Lush; but we can give them28 no redress.” 2 Black. W. at 1324, 96 Eng. Rep. at 776. Againthere was no suggestion that the Court lacked jurisdiction toconsider the evidence and to determine the sailors’ status onthe basis of that evidence."

Page cites again, as well as quotes from the decision (something that "Bart" has never done here.

"Bart" just shows once again how fundamentally dishonest (and hypocritical) he is.

["Bart"]: These quotes from the King's Bench are pretty self explanatory:

In The Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), the King’s Bench denied the sailors’ petitions because they were 'alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus.' Id. at 776." Boumediene, et al. v. Bush, No. 05-5064 *13 (D.C. Cir. 2007).

Same quote as proffered by JaO (and the brief he cites). But "Bart" (and the DC Circuit) leaves off these four words: "...on their own shewing". Wonder why....

Well, there is another example of an emergency power:To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. It uses similar language and conditions, and it seems to empower the Congress to regulate and define what would occur anyhow - that the militia would respond to an invasion, and congress would regulate it.

In the same way, Congress is allowed to regulate and define habeas suspension; in other words, a judge can't decide on his own that the conditions are too dangerous, it is up to Congress to define them. Otherwise, under conditions that are no where near that boundary, judges (or legislatures or executives) could take it upon themselves to declare emergency conditions in their own interest. There's a range of conditions that are near, but not clearly in, breakdown.

But, calling forth the militias brings another question to mind: under a strict reading of the constitution, how could using the National Guard, the logical descendant of the state militias, be usable to invade a third country? States can't do that on their own, since foreign affairs are clearly a national issue, and Congress does not appear to have the authority to call up the militias except in case of invasion or insurrection.

Well, there is another example of an emergency power:To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. It uses similar language and conditions, and it seems to empower the Congress to regulate and define what would occur anyhow - that the militia would respond to an invasion, and congress would regulate it.

In the same way, Congress is allowed to regulate and define habeas suspension; in other words, a judge can't decide on his own that the conditions are too dangerous, it is up to Congress to define them. Otherwise, under conditions that are no where near that boundary, judges (or legislatures or executives) could take it upon themselves to declare emergency conditions in their own interest. There's a range of conditions that are near, but not clearly in, breakdown.

But, calling forth the militias brings another question to mind: under a strict reading of the constitution, how could using the National Guard, the logical descendant of the state militias, be usable to invade a third country? States can't do that on their own, since foreign affairs are clearly a national issue, and Congress does not appear to have the authority to call up the militias except in case of invasion or insurrection.

Your two refs actually support my point. From Fed#29:THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the ConfederacyandIn times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition.

The bi-yearly army appropriation, which is not an included clause for the navy, makes it pretty clear (read in historical, as opposed to legal context), that the military was supposed to be a fairly small force designed to integrate the militias, which could be pumped up in emergencies; the navy is differenct, since in the 18th century, army hardware was bodies, while navies had ships that couldn't be pumped up or down.

Now, why is this relevant? Because if we attempt to read the suspension clause in some kind of original context, we have to read the entire constitution in original context. In which case, our entire legal system is completely illegitimate, particularly our current militaristic endeavors which are the basis of the entire argument. And so those who would deny habeas are swallowed by their own navel.

Of course, not being a lawyer, I don't make legal arguments; I make political arguments. But it seems, on the plain face, that we are not primarily working under a "constitutional" system, but a "common law" system, to which the euphemism of the "living constitution" refers.

A pretrial newsarticle in the Rasul matter in 2003 pointed to a Univ. of MD institute then organizing with some interest in constitutional law as well as national security; evidently, that institute did not participate in the amici group in Rasul's case at Scotus nor in argument at Scotus the next year. In Scotus' Rasul opinion, Scalia touched briefly in dissent, upon the possible utility of selecting Gitmo as a locus for detentions. Exploring this further online now, it appears that there is record of Cuba's holding a yearly ceremony to burn the US check for its extended lease of the 45sqmi base. Also based on online research, it seems the vessel maintenance function of Gitmo several years ago ended, transferred instead to a US mainland facility in FL, though the original lease purpose of service as a fuel stop remains intact at Gitmo. Reading the regional history and current press from the entire region of the Americas reminds one how recent are the many changes in political and civil life; and, specifically with respect to Gitmo, examining possible avenues to re-state the purportedly legal lease of Gitmo, it seems that many regional problems of centuries' duration remain intrinsic to approaching that kind of clarification; political life in Cuba remains complex. While I would like to see Gitmo on the BRAC's list of planned closures, it is evident it serves a purpose, as well as likely ends far from those envisioned in the agreement between the two countries for the territory's protracted occupation.I reviewed these thoughts in a framework of trying to simplify the assessment in the most recent petition for cert in the combined cases of Hamdan et al., set for a decision within a few days at Scotus. My concept at the outset was to look for a definable setting that would take the nebulousness out of the extraterritoriality and ungovernability status of Gitmo in the setting of its turbulent history with respect to international law. I report little progress in my brief websearch on the topic. Doubtless, some smart military lawyers and diplomats helped select Gitmo for the prison for the terrorism war captures, knowing fairly reliably these convoluted problems would provide a level of indistinctness which would force argument onto more rocksolid grounds, such as those in the thread here, examining century XVII King's law and US postRevolutionary times US habeas rights. While, to me, it seems arcane to attempt to define habeas based on centuries' previous tradition, especially given the context of a nimble current US policy to evade confrontation and deep ellucidation on these matters, nevertheless it is apparent to me that Gitmo is serving the purpose of keeping thoughtful analysis away from examination of the diplomatic aspect of the problem, that of the tenuous and contentious nature of the lease as it exists in its extended form. There are many celebrated causes here, and, I suspect, their clustering around the many issues involved also serves as a legal buffer to keep interested academics at a distance, though there is a print record of much insight published and available currently online showing considerable expertise is available on the matter. The transcending interest of national security is like the capstone holding the entire artifice cohesively together and keeping it from much serious discussion. I hope Scotus waxes somewhat verbose in its pronouncements concerning the petition currently before it in this regard. Perhaps the very amorphousness for which Gitmo was selected as a setting for the prison will embolden Scotus to utilize this case as a vehicle for addressing slightly more expansively than the Hamdan decision last year some of the deep concerns about the future of habeas discussed in recent months in many quarters in the US and abroad.

Even if the Supreme Court were to hold that POWs were among the classes of prisoners which enjoyed habeas corpus rights ...

It would be highly unusual for the Supreme Court to hold one way or another on that matter, since the POW question is not before it. Even the government does not argue that POWs are beyond the reach of habeas review.

The court is not in the habit of reaching out sua sponte to rule on questions raised by off-the-wall blog comments. Rather, the heart of the controversy in Boumediene is over whether the Suspension Clause protects habeas jurisdiction for aliens held in Guantanamo's particular geography.

... it is interesting to ponder exactly how the Court would propose to use habeas corpus review to conduct a substantive status hearing to determine if a Gitmo detainee is an unlawful enemy combatant.

If the court does find that the MCA's habeas provisions violate the Suspension Clause, as petitioners allege, it then would have to reach the government's argument that the CSRTs are a sufficient substitute for habeas review. That is where Marty Lederman's original post suggests that the case will focus. Since the D.C. Circuit did not address this question, I think that a remand to consider it would be a possible outcome.

I should think that only if the government ultimately lost on that question would the courts be faced with devising a process to consider the factual basis for detention.

If the case does get that far, then I agree that the scope of the detainees' substantive rights will be an interesting question.

Procrastinating from studying for a final, I went upstairs and checked out the set of English Reports the library has. I would note that, as far as I can tell, any federal court library should have the full set of English Reports. These libraries are open to the public and to bar members (see, e.g., the Seventh Circuit library, http://www.lb7.uscourts.gov/access.htm), so all the “practicing attorneys” who post in the comments should take notice and try doing some research to back up their assertions.

In my academic experience, citing your assertions is a necessary but not sufficient condition for getting top exam marks. I cannot imagine that any practicing attorney posting on these pages would successfully convince a federal judge that your arguments are bolstered by historical precedent without cites.

In order to help resolve some of the debates about the “unknown” text of the reported cases, I’m working on transcribing them out so we can see them. This takes time, and I am studying for finals. Three Spanish sailors comes first, and then we’ll get on to the others. (Emphasis added in order to assist my analysis, infra.)

Adair moved for a habeas corpus to be directed to the commander of the "Nightingale" sloop of war, to bring up three Spanish seamen. An affidavit made in Spanish, but translated and sworn to be a just translation, was read, stating that they were taken as prisoners of war on board of a Spanish privateer, and carried into Jamaica; where, our homeward bound fleet wanting hands, they were persuaded to enter on board a merchant vessel, Captain Hannibal Lush, commander, on a promise of wages, and an immediate exchange by cartel upon their arrival in England. But that Captain Lush, on coming to England, had refused to pay their wages, and had turned them over to the "Nightingale," as prisoners of war: which was urged to be a palpable breach of faith, which this Court will interfere to prevent. And Adair, being asked by the Court what he had to pray in case the men were brought up, expressed his hopes that the Court would discharge them.

[*776] But by Gould, Blackstone, and Nares, Js., (absente De Grey, C.J.) these men, upon their own shewing, are enemy aliens and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus. The story, as related by them, is not much to the credit of Captain Lush; but we can give them no redress. If they shew they have been ill used, it is probable that they may find some relief from the Board of Admiralty. But at present, Take nothing by the motion (c).

(c) S.P. R. v. Schiever, 2 Burr. 765. So the Court of K.B. would not grant a habeas corpus ad testifacandum. Furley v. Newnham, 2 Doug. 419. A rule nisi, for a habeas corpus, was granted to bring up a foreigner, exhibited in this country for money; case of The Hottentot Venus, 13 East, 195. See also Wood's Case, ante, 745; Brass Crosby's case, ante, 854.

--

A few notes.

1) The most obvious point is that the court examined a petition brought by admitted prisoners of war--which label the Guantanamo detainee emphatically deny, even if "Bart" wants to summarily declare them as such, and even though the government has not done so--and, after hearing the evidence, reached the merits. The detainees in Boumediene claim that the MCA is not giving them any opportunity to have a court hear the evidence and reach the merits.

2) Note that the sailors admitted in their affidavit that "they were taken as prisoners of war." The sailors did not contest their detention as prisoners of war, but rather sought release because the captain of the Nightingale had engaged "a palpable breach of faith" in the agreement to release them in England. The Spanish Sailors, as I understand it, challenged the fact that they were being detained pursuant to a bad faith agreement, and the fact that they were POWs was not at issue. This is fundamentally distinct from the case of the Guantanamo detainees, who a) resist any attempt to categorize them as enemy combatants (let alone prisoners of war), and who b) were not misled into believing they would be released. What the Guantanamo detainees fundamentally seek is precisely what the court allowed in Three Spanish Sailors: the ability for them to present their case and have an independent judicial body make a determination as to whether they are being properly and lawfully held.

3) The tenor of the case reporter's description makes it clear that because the sailors admitted that they were prisoners of war, any argument that they should be released via habeas corpus would be a non-starter. However, the penultimate sentence suggests that there may be process available to the detainees "if they shew they have been ill used," which I interpret to mean, if they show that they should not be properly categorized as prisoners of war because they were wrongfully impressed into coerced work on the privateer.

4) I want to reiterate Arne's and JaO's comments distinguishing habeas relief and habeas review. What the court exercises, and what the detainees in Boumediene seek, is fundamentally habeas review (although presumably they want the review because they think they can win on the merits and get the relief). Review is not the same as relief. Three Spanish Sailors shows that, in 1779, British courts were willing to examine the merits of the claims, even if the courts then decided on the merits that admitted prisoners of war did not have the same rights as normal Englishmen.

I think that's enough procrastinating for now. I'll get to the other reported cases when I can.

I should have known I wouldn’t have returned to working right away. Here’s my initial response to Schiever, and then I’ll get to posting the reported case later.

My interpretation of the reported Schiever case is that the British courts would interpret (take judicial notice of) the affidavit of the petitioner, arguing that he was impressed into service of a foreign privateer, as sufficient evidence that he was a prisoner of war. It seems that the relevant point was that he “was in the French service,” 97 Eng. Rep. at 552 note (a), while the court cared less that his service was “by compulsion against his own will,” id. The fact that Schiever “was in the French service” would be sufficient for the court to agree that he was correctly classified as a prisoner of war: he had been in the service of a foreign government even though the service was coerced.

Note what Schiever's jurisdictional holding would mean for the Guantanamo detainees: the court would be an appropriate venue to examine the evidence and make the determination of whether the detainees' claims--that they are not enemy combatants--had merit. The court in Schiever examined the evidence and determined that the evidence sufficiently showed that Schiever was, in fact, a prisoner of war, independent of Schiever's assertions. They reviewed the evidence and made the determination, which is, of course, wholly within the general expertise of a court reviewing a habeas petition.

Even though Schiever claimed that he was not a prisoner of war, his own testimony clearly suggests that he would be eligible for prisoner of war status. By comparison, Schiever's holding on the merits would apply to GTMO detainees if and only if the detainees admitted, “upon [their] own shewing,” Id., at 552, that the facts of their detention constituted prisoner of war status. Their “own shewing” would not be satisfied by a CSRT hearing or by a summary labeling of the detainees by the government that they were enemy combatants. When, as for the GTMO detainees in Boumediene, the detainees challenge their detention because they believe they are not properly classified, and do not admit “upon [their] own shewing” that they are enemy combatants or provide in affidavits the predicate facts which constitute a finding of that status, then Schiever cannot control—it is based on a different fact pattern.

However, Schiever is important because the court heard the motion for the writ, Id., at 551, examined the facts laid out in the affidavit, and determined the merits based on the facts. Indeed, the court even examines the testimony of Oluf Grundell, “who was on board the ‘Bellisle’ privateer when Schiever was put on board of it, [and who] swears that Schiever was forced against his inclination, by Captain Thurot, to serve on board of it, in the manner Schiever has above deposed; and that all the persons taken in the said vessel, belonging to neutral powers, were forced by Thurot, in the like manner, to serve on board the said privateer.” Id. In other words, the court heard evidence that aliens of neutral countries were coerced into serving on an enemy vessel, and the fact of neutral-status-on-enemy-vessel was sufficient to warrant upholding the POW designation. (Collaterally, this meant that Schiever was ineligible for relief through habeas corpus.)

The scope of the court’s power to review a habeas petition clearly extended in Schiever to a) an alien b) captured outside the territory c) who argued that he was not a prisoner of war (indeed, who argued that “his intention still is (could he obtain his liberty) to enter as a mariner into the England merchants service,” Id.). That the court found that he was in fact a prisoner of war does not change the fact that he was entitled, in the first instance, to review of his petition.

Adair moved for a habeas corpus to be directed to the commander of the "Nightingale" sloop of war, to bring up three Spanish seamen. An affidavit made in Spanish, but translated and sworn to be a just translation, was read, stating that they were taken as prisoners of war on board of a Spanish privateer, and carried into Jamaica; where, our homeward bound fleet wanting hands, they were persuaded to enter on board a merchant vessel, Captain Hannibal Lush, commander, on a promise of wages, and an immediate exchange by cartel upon their arrival in England. But that Captain Lush, on coming to England, had refused to pay their wages, and had turned them over to the "Nightingale," as prisoners of war: which was urged to be a palpable breach of faith, which this Court will interfere to prevent. And Adair, being asked by the Court what he had to pray in case the men were brought up, expressed his hopes that the Court would discharge them.

These facts are easily distinguished from the instant Gitmo cases. The petitioners admitted that they were prisoners of war. Adair, who appears to be the petitioner's lawyer, never asked or implied that the King's Bench should make a determination as to whether the Crown properly designated these sailors as prisoners of war. Rather, the argument appears to arise in equity, alleging a breach of trust by a civilian captain.

The Gitmo petitioners' attorneys are willfully misrepresenting the nature of the review here. I suspected as much when they declined to quote from this case.

[*776] But by Gould, Blackstone, and Nares, Js., (absente De Grey, C.J.) these men, upon their own shewing, are enemy aliens and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus. The story, as related by them, is not much to the credit of Captain Lush; but we can give them no redress. If they shew they have been ill used, it is probable that they may find some relief from the Board of Admiralty. But at present, take nothing by the motion (c).

The opinion of the King's Bench, which was quoted by in Gitmo court opinions, expressly holds that foreign prisoners of war have no rights of Englishmen including being "set at liberty on a habeas corpus..." Of note, the King's Bench makes no distinction between habeas review and relief in this holding. Indeed, if the petitioners have no rights at all as Englishmen, it is hard to read this opinion as extending any rights under habeas corpus, whether that be review or relief.

(c) S.P. R. v. Schiever, 2 Burr. 765. So the Court of K.B. would not grant a habeas corpus ad testifacandum. Furley v. Newnham, 2 Doug. 419. A rule nisi, for a habeas corpus, was granted to bring up a foreigner, exhibited in this country for money; case of The Hottentot Venus, 13 East, 195. See also Wood's Case, ante, 745; Brass Crosby's case, ante, 854.

The interesting portion of this citation to authority notes that the King's Bench previously denied a habeas corpus ad testifacandum. A habeas corpus ad testificandum seeks to produce the petitioner before the court to give testimony. It appears that the Kings Bench denied Scheiver's request to testify before the court. That means the King's Bench either did not conduct a review or did not feel it necessary to hear from Schiever to conduct the review.

That means the King's Bench either did not conduct a review or did not feel it necessary to hear from Schiever to conduct the review.

But obviously the court did consider Schiever's affidavit, as well as evidence from another witness! (Which Bart simply ignores.) Review occurred. Relief was denied.

Bart can deny the sun shines at noonday, but it is easy to see why the solicitor general does not. And both the Supreme Court and the D.C. Circuit already have construed the Schiever case to be an example of denial of relief on the evidence, after review of the habeas petition.

Exactly what do you think the significance of reading the affidavit has on anything?

The affidavit is part of the pleading. Courts read the pleading before dismissing habeas petitions all the time.

Reading the affidavit does not mean that the Court made any sort of determination as to whether the petitioners were properly designated as POWs by the Crown.

The fact summary in Three Spanish Sailors showed that the Gitmo attorneys were willfully misrepresenting the limited to nonexistent review in which the King's Bench engaged. I expect something similar when reading Schiever.

The court not only read the affidavit (and the testimony of another witness, which Bart continues to ignore) the court cited Schiever's testimony as basis for its holding -- "on his own shewing" -- after considering and rejecting the merits of his argument that conscription made a difference. In order to dismiss on jurisdictional grounds, if the Crown's finding of POW status were sufficient to deny jurisdiction, none of that would have to be considered.

This is called evidence. What was denied is called relief. The process is called review. Review of the evidence cannot occur absent jurisdiction.

Once again, I direct Bart to the clear language of the D.C. Circuit's Boumediene opinion: "The court denied [Schiever] relief because it found ample evidence that he was a prisoner of war." And all this occurred in what the Supreme Court of the United States called "reviewing the habeas petition." (Both of which citations Bart continues to ignore, as well.)

The question of how to construe these cases is settled. If Bart wants to change that, he does not have to convince me. He has to convince the solicitor general to try to convince the Supreme Court that it is wrong.

(BTW, thanks to hip cat hobbes for the labor of transcribing the English cases.)

Assuming arguendo that the detainees' lawyers were misleading in applying the case, an argument with which I personally disagree, the majority in Boumediene was doubly misleading by excising a very relevant qualification in Mansfield's opinion in R v Cowle to make it "sound" more in line with their preferred outcome.

I quote from the dissent, slip op. at 15:

Through the use of ellipsis marks, the court excises the qualification and concludes that the writ does not extend “[t]o foreign dominions.” Op. at 16. This masks two problems in its analysis. A “foreign dominion” is not a foreign country, as the court’s reasoning implies, but rather “a country which at some time formed part of the dominions of a foreign state or potentate, but which by conquest or cession has become a part of the dominions of the Crown of England.” Ex parte Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (K.B. 1864). And the exception noted in Lord Mansfield’s qualification has nothing to do with extraterritoriality: Instead, habeas from mainland courts was unnecessary for territories like Scotland that were controlled by princes in the line of succession because they had independent court systems.

So the majority misleadingly misquoted an old case for the proposition that the writ would not run to "foreign dominions." The irony is that "foreign dominions" were often, like Berwick (the area at issue in R v Cowle), conquered by military force and subjugated under the Crown. Note that the 1903 Cuba-U.S. treaty granting the US control over Guantanamo was signed after the U.S. had conquered and subjugated all of Cuba, as a condition for relinquishing American control of the island.

Once again, I direct Bart to the clear language of the D.C. Circuit's Boumediene opinion: "The court denied [Schiever] relief because it found ample evidence that he was a prisoner of war." And all this occurred in what the Supreme Court of the United States called "reviewing the habeas petition." (Both of which citations Bart continues to ignore, as well.)

How am I ignoring this? This is no different from my review of the reporter summary of Three Spanish Sailors.

Thanks to hip cat's posting, we have found that the King's Bench in Three Spanish Sailors read the petitioners' affidavit reporting that the Crown took them as prisoners of war and then dismissed their petitions.

The petitioners did not admit that they were being properly held as prisoners or war, they simply reported the fact that the Crown was so holding them.

The Kings Bench never performed a substantive review of the facts to determine if the Crown properly designated petitioners as prisoners of war, they simply took judicial notice of the fact.

In Three Spanish Sailors, it was enough for the King's Bench to note that the Crown held the petitioners as prisoners of war to deny them habeas corpus review and relief. The mere fact that the Crown held the Spaniards as prisoners of war is what the King's Bench thought to be "ample evidence" that petitioners were prisoners of war and to deny them habeas corpus.

When hip cat posts the reporter summary of Schiever, I expect an opinion almost identical to Three Spanish Sailors - the Court read in the affidavit that Schiever was held by the Crown as a POW and then ended all inquiry without any substantive determination of whether the Crown properly determined that Schiever was a POW.

My surmise was completely correct concerning Three Spanish Sailors. I expect that that will be the case with Schiever.

"Bart": Assuming arguendo that the detainees' lawyers were misleading in applying the case, an argument with which I personally disagree, the majority in Boumediene was doubly misleading by excising a very relevant qualification in Mansfield's opinion in R v Cowle to make it "sound" more in line with their preferred outcome.

I am not spending my time defending the D.C. Circuit majority. For the reasons I gave at my blog and here in response to multiple posts, I think the D.C. Circuit erred in hanging their hat on geographic venue. I would have applied the King's Bench decisions in Three Spanish Sailors and Schiever to judicially recognize that the Gitmo detainees are being held as prisoners of war for the duration of the war and as such have no habeas corpus rights.

BTW, at the risk of messing up your midterm exam grades, I would REALLY love for you to post the reporter summary of Schiever.

We have reached the point of repetition. Any reader can easily see that you ignore the record in front of you. Denying relief on the basis of evidence found during review is not just "taking judicial notice" of the Crown's finding of POW status. Let me know when the Supreme Court, the Court of Appeals or even the solicitor general reverse themselves and adopt your position.

I understand quite acutely the argument you're trying to make, so forgive me if I sounded like I was portraying your argument as otherwise. I note only that I disagree at the most fundamental level with the assumption that the Guantanamo detainees are prisoners of war that the court could recognize as being POWs in the first place: I think that your argument would be a slam dunk if the facts satisfied the following necessary condition.

Both Three Spanish Sailors (as you and probably I are reading it) and Schiever have as the necessary condition for the Court to "judicially recognize" POW status, that the detainees admitted in their sworn testimony to being prisoners of war. (And if we're applying this to the Guantanamo scenario, "sworn testimony" must have been given "without coercion or duress," because we're living in the modern ages and it is the rare court that will "judicially recognize" torture.) I read the cases for the proposition that the detainee must admit POW status in order for the Court to "recognize" POW status and deny relief (using the procedural device you think they do/should). Any other fact pattern that we're talking about in these cases--on my reading of these cases--is a red hearing.

I think you will come to understand some of the critiques being put forward by the commenters on this page when I post Schiever. But seriously, tomorrow I disappear for several days, so, my apologies.

If you have access to Hein, they have the full version of English Reports on there. You can search by citation, case name, or original nominative citation. (I am not going to post PDFs here from Hein, sorry...)

Adair moved for a habeas corpus to be directed to the commander of the "Nightingale" sloop of war, to bring up three Spanish seamen. An affidavit made in Spanish, but translated and sworn to be a just translation, was read, stating that they were taken as prisoners of war on board of a Spanish privateer, and carried into Jamaica; where, our homeward bound fleet wanting hands, they were persuaded to enter on board a merchant vessel, Captain Hannibal Lush, commander, on a promise of wages, and an immediate exchange by cartel upon their arrival in England. But that Captain Lush, on coming to England, had refused to pay their wages, and had turned them over to the "Nightingale," as prisoners of war: which was urged to be a palpable breach of faith, which this Court will interfere to prevent. And Adair, being asked by the Court what he had to pray in case the men were brought up, expressed his hopes that the Court would discharge them.

These facts are easily distinguished from the instant Gitmo cases. The petitioners admitted that they were prisoners of war.

"Well, doh!"

I think "Mr. Simpson" here may be catching on just vaguely.... Perhaps after the next ten posts hi may figure out what this fact means....

[to JaO]: Exactly what do you think the significance of reading the affidavit has on anything?

The affidavit is part of the pleading. Courts read the pleading before dismissing habeas petitions all the time.

As "Bart" should know (but ominously for his clients, apparently doesn't), if it ain't in your pleadings, the courts will toss you.... Bu we already know that "Bart" is of the curious opinion that SJ is only appropriate after discovery is done. Pity the poor soul that relies on "Bart" to handle his case, if "Bart" gets lazy and fails to make a necessary declaration in the pleadings thinking he can add it in during or after discovery.

I added a few more comments over there. You want to see a complete trashing of "Bart"'s sophistry (and slipshod 'scholarship'), go check it out for sh*ts and giggles. Quick, before "Bart" gets embarrassed and deletes my posts.....

A Democratic official involved in developing the Guantanamo strategy said the Democrats, who control the new Congress, expect Republicans to object to bringing the detainees onto U.S. soil because their attorneys would surely argue they were entitled to myriad new rights.

Yep, the primary reason for putting them (and keeping) them in Guantanamo is to make sure they don't have any of the rights that the United States thought essential to a free society. Can't have that now.....

A senior administration official, also speaking on the condition of anonymity, said he was puzzled by the Democrats' frequent discussion of closing Guantanamo.

"While we want to bring these guys to trial as quickly as possible, where do Democrats believe we should keep Khalid Sheikh Mohammed, the mastermind of the 9/11 plot?" the official asked. "Which American city will they choose to place America's most wanted terrorists?"

"While we want to bring these guys to trial as quickly as possible, where do Democrats believe we should keep Khalid Sheikh Mohammed, the mastermind of the 9/11 plot?" the official asked. "Which American city will they choose to place America's most wanted terrorists?"

is just the PC echo of what the RW foamer contingent is saying: "Why don't you, you bleeding-heart liberal, take this guy home. Don't blame me when he cuts your throat...."

"Straw man", of course. Maybe they think (or would like you to think) that U.S. military brigs and prisons are latch-key affairs. But that's apparently what they think their best 'argument' is.....

This would be an interesting development: Democrats Want Gitmo Prisoners Sent to U.S. (link to politico.com)

Is there anyone the Dems do not want to bring to the United States? They propose to bring both our troops and the enemy here. Maybe we can also move the war here again just like in the good old days between 1993 and 2001...

I finally finagled a pdf of the Schiever case out of a free introductory period from juris.com. As I surmised, the question presented and the holding are nearly identical to the Three Spanish Sailors case.

The King's Bench quoted at length from Schiever's affidavit, but as noted in the subsequent Three Spanish Sailors opinion, the court declined to call Schiever to testify. There wass no need since the Court performed no findings of fact. Instead, the King's Bench only concerned itself with the part of the affidavit where Schiever reported that he was presently being held as the King's prisoner of war:

[The French ship upon which Schiever served was] carried into Liverpool: where this Bernard Schiever was sent to the town goal of Liverpool, as a prisoner of war, under the custody of said Richard Rigby keeper of said goal; and is now, and ever since has been detained there for no other cause than the cause aforesaid.

In contrast to the Gitmo detainees, Schiever's barrister Mr. Stowe did not ask the King's Bench to determine if the Crown had properly designated Schiever as a prisoner of war. Rather...

Mr. Stowe urged that it would be very hard upon this man, to be kept in prison here, until exchanged by cartel; and then sent back to France, where he would be forced into their service again

Neither did the King's Bench sua sponte make a review and determination as to whether the Crown had properly designated Schiever as a prisoner of war. Rather, it simply held:

But the Court thought this man, upon his on shewing, clearly a prisoner of war, and lawfully detained as such.(a) Therefore, they

Denied the motion.

In sum, just like in the subsequent Three Spanish Sailors case, the King's Bench read the affidavit's report that the petitioner was being held as a POW, judicially recognized that the King was holding the petitioner as a prisoner of war, held that POWs do not enjoy habeas corpus review and then dismissed the petition with no further analysis.

The DC Circuit should have followed this precedent with the Gitmo petitioners instead of playing venue games. This line is as bright as any created by the Courts - foreign POWs do not enjoy habeas corpus rights to challenge their wartime detentions.

Because Bart neither posted the PDF nor transcribed it, and rather only selectively quoted from it, I have taken the time to finish transcribing the opinion so that it can be discussed by everyone.

--

97 Eng. Rep. 551

Rex v. Barnard Schiever, a Swede. 1759. Hab. corp. for a prisoner of war taken on board an enemy's prize ship denied.

Mr. Stowe moved for a habeas corpus to be directed to Richard Rigby, keeper of the town-gaol of Liverpool, to bring up the body of Barnard Schiever, a subject of a neutral power, taken on board of an enemy's ship; but forced, as it was alledged, [sic] into the enemy's service.

The substance of the affidavit upon which he grounded his motion, was, that this Barnard Schiever was born in the dominions of the King of Sweden: and his father was now in that King's service. That this Barnard Schiever, being bred to the sea, and understanding navigation, was desirous of entering into the service of the merchants of England; and for that purpose and for no other design or intent whatsoever, shipped himself as a passenger from Gottenburg to Elsineur, in order there to enter on board some English merchant's ship. That when he arrived at Eslineur, he applied to the English consul there, who shipped him, as a mariner, on board an English merchant's vessel bound on a voyage from Hill to Dublin; with which ship he set sail. That in prosecuting the said voyage, in the said ship, he was taken by a French privateer, and carried into Norway; where there was another privateer. That he, together with all the prisoners taken on board the English vessel, were put on board the latter privateer, called the "Mareschal de Bellisle," Captain Thurot commander. That the day after he was removed into the "Bellisle," the English prisoners were, by the command of Captain Thurot, set ashore at their liberty: but all the persons belonging to the said English vessel, who were the subjects of neutral powers, were detained to serve on board the said privateer, (the "Bellisle"). Upon which this Schiever applied to Captain Thurot to set him ashore likewise; alledging [sic] 'he was intitled [sic] to his liberty as being a neutral person.' But Thurot told him 'that for that reason he should not go on shore: for that he might as well serve him, as serve the English; and that he would make him serve him;' or words to that effect. And accordingly Thurot detained him, against his will and inclination on board of the said 'Mareschal de bellisle,' privateer, and treated him with so much severity, that he would not suffer him to go on shore when in port, upon his necessary occasions; but closely confined him to duty, on board the said privateer. That the said privateer commanded by Thurot, being on a cruise, took two little brigs: on board of one of which, this Schiever, with some others, were put, with orders from Thurot 'to navigate the said brig into any harbour in Norway.' That the said last mentioned brig was, in going to Norway, re-taken by the 'Fame' letter-of-mark [sic] ship, and carried into Liverpool: where this Barnard Schiever was sent to the town-gaol of Liverpool, as a prisoner of war, under the custody of the said Richard Rigby keeper of the said gaol; and is now, and ever since has been detained there for no other cause than the cause aforesaid. Schiever swears that his intention still is (could he obtain his liberty) to enter as a mariner into the English merchants service: and that he would not nor should have served on board the said privateer, had he not been forced thereto and detained as aforesaid by the said Captain Thurot.

One Oluf Grundell, who was on board the ‘Bellisle’ privateer when Schiever was put on board of it, swears that Schiever was forced against his inclination, by Captain Thurot, to serve on board of it, in the manner Schiever has above deposed; and that all the persons taken in the said vessel, belonging to neutral powers, were forced by Thurot, in the like manner, to serve on board the said privateer.

[*552] Mr. Stowe urged that it would be very hard upon this man, to be kept in prison here, till exchanged by cartel; and then sent back to France, where he would be forced into their service again.

But the Court thought this man, upon his own shewing, clearly a prisoner of war, and lawfully detained as such.(a) Therefore they

Denied the motion.

(a) Qu. For as he was the subject of a neutral prince and was in the French service by compulsion against his own will? Qu. Whether when he was taken the last time by the English, he was to be considered not as an enemy, but as the subject of a neutral prince, and therefore not as a lawful prisoner of war?

--

I'll make a few comments, and then back to studying.

1) In contrast to the Gitmo detainees, Schiever's barrister Mr. Stowe did not ask the King's Bench to determine if the Crown had properly designated Schiever as a prisoner of war. Rather...

Well, no, Bart, no one is asking if anyone has been designated as a prisoner of war, precisely because the Bush administration has not been willing to grant prisoner of war status to suspected terrorists! Do you understand what the Geneva Conventions require in terms of treatment of prisoners of war? The administration would never be able to get away with waterboarding prisoners of war, or even interrogating them, because the Geneva Conventions specifically prohibit the interrogation of prisoners. "Article 17 of the Third Convention ... provides that prisoners of war are required only to give their name, rank, date of birth and army serial numbers to interrogators and sets forth the prohibition of physical or mental torture and of coercion to obtain information. The same Article establishes that prisoners who decline to provide information may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment. Thus, the administration presumably thought that, by not classifying the detainees as prisoners of war, it could enjoy a wide discretion in questioning them.” Silvia Borelli, “The Treatment of Terrorist Suspects Captured Abroad,” in Andrea Bianchi, ed., Enforcing International Law Norms Against Terrorism 52 (2004) (citing III G.C., art. 17). There is a method behind the madness. (Note also that Schiever was decided abut 150 years before the III G.C. was signed. In those 150 years, the idea of treating prisoners of war humanely developed substantially.)

Moreover, note that Schiever's counsel "urged that it would be very hard upon this man, to be kept in prison here, until exchanged by cartel..." In this sense, a "cartel" is "a written agreement relating to the exchange or ransom of prisoners, etc.; such exchange itself," Oxford English Dictionary definition, sense 3.a., or also "a ship commissioned in time of war to exchange the prisoners of any two hostile powers..." William Falconer, An universal dictionary of the marine 1769 (cited by OED definition, sense 3.b.). At the end of hostilities, prisoners get transferred back to their home countries. In the case of the "war on terror," in which the length of hostilities is indefinite, the suspected terrorists may never get transferred back. The fact that some detainees may be innocent only compounds this concern. (Aren't you a defense lawyer? Don't you believe in the presumption of innocence? Or is that available only to the citizens of Colorado Springs?)

Even if you think the Bush administration erred in not classifying the suspected terrorists as POWs, they did not, and it is not within the cognizance of the court to ascribe that status to them when the executive has chosen a different standard. For this argument, see Eric Posner and Adrian Vermeule, Terror in the Balance 17 (2007) ("...our view counsels courts to provide high deference during emergencies, as courts have actually done...") (disclosure: my advisor's book, although I disagree with the book's arguments). Although I haven't really thought about this, my gut reaction is that you are asking a court to be fundamentally "activist" to call a suspected terrorist a POW when the executive has explicitly rejected that designation.

Either way, you are repeatedly and fundamentally misrepresenting the question being posed by the Gitmo detainees' counsel. They are not asking the Court "to determine if the [Executive] had properly designated them as" enemy combatants, which is a question of whether the but are rather asking a more basic question. As the Boumediene court notes, "[t]he first question is whether the MCA applies to the detainees’ habeas petitions. If the MCA does apply, the second question is whether the statute is an unconstitutional suspension of the writ of habeas corpus." Boumediene v. Bush, no. 05-5062b, slip op. at 9. This is emphatically not the same question as what you frame it as. Yes, they are challenging the MCA so that they can ultimately seek habeas review to determine whether they are being held lawfully. But the question, "are the detainees at Guantanamo Bay being held lawfully" is a logically distinct question from, has "the [Executive] ... properly designated them as" enemy combatants.

The reason for citing Schiever in the first place, as I'm sure you know, is to determine whether the writ at the founding applied to prisoners of war. While I agree that for someone who is an admitted prisoner of war, "on his own shewing," 97 Eng. Rep. at 552, the writ does not apply, that review must be open to someone who challenges that designation.

2) But the Court thought this man, upon his on shewing, clearly a prisoner of war, and lawfully detained as such.(a) Therefore, they Denied the motion.

Thoughtful (misleading?) of you to omit that footnote, (a), which reads: "(a) Qu. For as he was the subject of a neutral prince and was in the French service by compulsion against his own will? Qu. Whether when he was taken the last time by the English, he was to be considered not as an enemy, but as the subject of a neutral prince, and therefore not as a lawful prisoner of war?"

This sounds an awful lot like a "sua sponte ... review and determination as to whether the Crown had properly designated Schiever as a prisoner of war." Moreover, when you say that they "dismissed the petition with no further analysis," you mean that you left out the footnote that shows that there was "further analysis" or probing of the question?

3) Finally, I think you are also misreading how the detainees' counsel is representing this case. From the amicus brief: "Alleged enemy aliens could also challenge the factual basis of their commitment on habeas to ensure it was within the bounds prescribed by law. Three Spanish Sailors’ Case, 96 Eng. Rep. 775 (C.P. 1779) (examining affidavit detailing facts supporting petitioners’ release, but concluding that, “upon their own showing,” they are alien enemies) (emphasis added); accord R. v. Schiever, 97 Eng. Rep. 551 (KB. 1759)." Amicus Brief of British and American Habeas Scholars, Boumediene v. Bush, 9/8/05, at 4 (italics in original, bold added). They are not saying that Three Spanish Sailors or Schiever are precedent that POWs are entitled to habeas relief. They are saying that those cases are precedent that POWs are entitled to have their cases reviewed, including "prob[ing] the return and examined additional evidence submitted by both sides to ensure the factual and legal sufficiency of the commitment. See, e.g., Goldswain’s Case, 96 Eng. Rep. 711, 712 (C.P. 1778) (judges temporarily discharge impressed sailor, refusing to “shut their eyes” to facts in petitioner’s affidavits showing he was legally exempt from impressment); R. v. Delaval, 97 Eng. Rep. 913, 915-16 (K.B. 1763)(scrutinizing affidavits and concluding that girl had been fraudulently indentured as an apprentice and was being misused as a prostitute)..." Amicus Brief, supra, at 3 (emphasis added).

[The French ship upon which Schiever served was] carried into Liverpool: where this Bernard Schiever was sent to the town goal of Liverpool, as a prisoner of war, under the custody of said Richard Rigby keeper of said goal; and is now, and ever since has been detained there for no other cause than the cause aforesaid.

I knew the Liverpool was a big football town, but expecting the goal keeper to do everything in town is a bit much, isn't it? ;-)

He's shameless in this. You can point it out as many times as possible (and then some), but "Bart"'s perspicacity in seeing the non-obvious and his resoluteness in ignoring the wiles of Satan and never admitting defeat leave all us mortals far behind ... and dumbstruck.

BD: 1) In contrast to the Gitmo detainees, Schiever's barrister Mr. Stowe did not ask the King's Bench to determine if the Crown had properly designated Schiever as a prisoner of war. Rather...

Well, no, Bart, no one is asking if anyone has been designated as a prisoner of war, precisely because the Bush administration has not been willing to grant prisoner of war status to suspected terrorists!

The United States is declining to confer the status of POW under the Geneva Conventions to Gitmo detainees because thy do not fit that definition. However, these unlawful enemy combatants easily fit within the generic definition of POW.

(Note also that Schiever was decided abut 150 years before the III G.C. was signed. In those 150 years, the idea of treating prisoners of war humanely developed substantially.)

That is true. However, during the centuries between the King's Bench decisions and Rasul, neither the United States nor Britain ever extended habeas corpus to enemy POWs.

Moreover, note that Schiever's counsel "urged that it would be very hard upon this man, to be kept in prison here, until exchanged by cartel..." In this sense, a "cartel" is "a written agreement relating to the exchange or ransom of prisoners, etc.; such exchange itself," Oxford English Dictionary definition, sense 3.a., or also "a ship commissioned in time of war to exchange the prisoners of any two hostile powers..." William Falconer, An universal dictionary of the marine 1769 (cited by OED definition, sense 3.b.).

Military history was a professional requirement when I served and is now an ongoing hobby. I am well aware that the Europeans of this time routinely paroled captured soldiers on promises that they would not rejoin the war. Keeping prisoners was simply too expensive. However, I hope you are not suggesting that we can trust al Qaeda's word of honor that their terrorists would not be sent out to murder our citizens again.

At the end of hostilities, prisoners get transferred back to their home countries. In the case of the "war on terror," in which the length of hostilities is indefinite, the suspected terrorists may never get transferred back.

That is true. So long as the enemy keeps warring against us, their captures stay detained. Your other alternatives are to release the Captures so they can rejoin the jihad or we can execute the captures as unlawful combatants like we did from the Revolution to WWII.

The fact that some detainees may be innocent only compounds this concern. (Aren't you a defense lawyer? Don't you believe in the presumption of innocence? Or is that available only to the citizens of Colorado Springs?)

POWs are not criminal defendants unless they are tried for war crimes. Their due process is a formal combatant status hearing, which is far more than unlawful enemy combatants received for most of our history.

Even if you think the Bush administration erred in not classifying the suspected terrorists as POWs, they did not, and it is not within the cognizance of the court to ascribe that status to them when the executive has chosen a different standard. For this argument, see Eric Posner and Adrian Vermeule, Terror in the Balance 17 (2007) ("...our view counsels courts to provide high deference during emergencies, as courts have actually done...") (disclosure: my advisor's book, although I disagree with the book's arguments). Although I haven't really thought about this, my gut reaction is that you are asking a court to be fundamentally "activist" to call a suspected terrorist a POW when the executive has explicitly rejected that designation.

I never claimed that the United States erred in not extending Geneva Conventions protections to unlawful enemy combatants which do not fit the definition. However, I agree with your authority that holds that the courts generally defer to the military's expertise in this area.

Either way, you are repeatedly and fundamentally misrepresenting the question being posed by the Gitmo detainees' counsel. They are not asking the Court "to determine if the [Executive] had properly designated them as" enemy combatants...

That is precisely the distinction being made with Schiever and Three Spanish Sailors. Both of these cases expressly hold that POWs do not have habeas corpus rights. In order to get around that rather large hurdle, the petitioning attorneys are claiming that the King's Bench conducted a habeas review of whether the petitioner was properly designated as a POW simply because the court read the petitioner's affidavit. Read the petitioner's briefs on these cases.

...but are rather asking a more basic question. As the Boumediene court notes, "[t]he first question is whether the MCA applies to the detainees’ habeas petitions. If the MCA does apply, the second question is whether the statute is an unconstitutional suspension of the writ of habeas corpus." Boumediene v. Bush, no. 05-5062b, slip op. at 9. This is emphatically not the same question as what you frame it as.

Sure it is.

The Suspension Clause is generally considered to have incorporated the common law habeas corpus right as it existed in 1798 into the Constitution. It is this right that Congress may not suspend expect in cases of invasion or rebellion.

Thus, the question is whether foreign POWs enjoyed a habeas corpus right to challenge their wartime detentions in 1798. Schiever and Three Spanish Sailors are key to answering this question.

But the question, "are the detainees at Guantanamo Bay being held lawfully" is a logically distinct question from, has "the [Executive] ... properly designated them as" enemy combatants.

Perhaps, but the Gitmo detainees are making the latter argument. If they concede their status as enemy combatants, then they are not in a position to challenge their detentions for the duration of the war.

While I agree that for someone who is an admitted prisoner of war, "on his own shewing," 97 Eng. Rep. at 552, the writ does not apply, that review must be open to someone who challenges that designation.

You are making a policy proposal, not providing an analysis of Schiever. Schiever never provided such a review and the petitioners are misrepresenting the holding when they claim the King's Bench did perform such a review.

2) But the Court thought this man, upon his on shewing, clearly a prisoner of war, and lawfully detained as such.(a) Therefore, they Denied the motion.

Thoughtful (misleading?) of you to omit that footnote, (a), which reads: "(a) Qu. For as he was the subject of a neutral prince and was in the French service by compulsion against his own will? Qu. Whether when he was taken the last time by the English, he was to be considered not as an enemy, but as the subject of a neutral prince, and therefore not as a lawful prisoner of war?"

I was curious where you obtained that extra language.

This extra langauge is not in the pdf scan of the actual reporter provided by justis.com. This reporter goes directly from "Denied the motion" to the case of Rex v. Pigram.

I doubt that these questions would have followed the holding of the court. Opinions begin, not end, with the questions presented. This sounds like commentary or even law school questions. What was your source of the Schiever opinion?

3) Finally, I think you are also misreading how the detainees' counsel is representing this case. From the amicus brief: "Alleged enemy aliens could also challenge the factual basis of their commitment on habeas to ensure it was within the bounds prescribed by law. Three Spanish Sailors’ Case, 96 Eng. Rep. 775 (C.P. 1779) (examining affidavit detailing facts supporting petitioners’ release, but concluding that, “upon their own showing,” they are alien enemies) (emphasis added); accord R. v. Schiever, 97 Eng. Rep. 551 (KB. 1759)." Amicus Brief of British and American Habeas Scholars, Boumediene v. Bush, 9/8/05, at 4 (italics in original, bold added). They are not saying that Three Spanish Sailors or Schiever are precedent that POWs are entitled to habeas relief. They are saying that those cases are precedent that POWs are entitled to have their cases reviewed, including "prob[ing] the return and examined additional evidence submitted by both sides to ensure the factual and legal sufficiency of the commitment.

This is a distinction without a difference. The only reason to conduct habeas review is to obtain habeas relief. However, the King's Bench in Schiever and Three Spanish Sailors expressly denied habeas relief to POWs. Consequently, the Gitmo petitioners have to make the silly argument that you can have habeas review without habeas relief.

Back to finals.

:::smile:::

Stop using this place as an excuse not to study. Go forth and ace your exams.

["Bart"]: 1) In contrast to the Gitmo detainees, Schiever's barrister Mr. Stowe did not ask the King's Bench to determine if the Crown had properly designated Schiever as a prisoner of war. Rather...

[hip cat hobbes]: Well, no, Bart, no one is asking if anyone has been designated as a prisoner of war, precisely because the Bush administration has not been willing to grant prisoner of war status to suspected terrorists!

["Bart"]: Like a prior poster who made this argument, you are mistakenly coflating the general definition of a prisoner of war as a combatant captured by the enemy and interned until the end of the current conflict with the much narrower Geneva Convention definition of POWs which confers special rights to them.

"hip cat hobbes" is correct in what he says. Regardless of the passage of the Geneva Conventions, the maladministration has not designated these people in Guantanamo as "prisoners of war". Because this designation (as opposed to judicial determination) is the peg on which you hang your hat on, your claim that habeas may be denied because of your disputed 'reading' of the Schiever and Three Sailors cases is just so much garbage.

["Bart"]: The United States is declining to confer the status of POW under the Geneva Conventions to Gitmo detainees because thy do not fit that definition....

If it is their status under the treaties (and under its definitions) that is in dispute, then the treaties require a hearing (something the maladministration has indicated it is under no obligation to provide, and which it has resisted), and the gummint is required by treaty to treat the prisoners as "prisoners of war" until such time that such hearings are held (which it has not done). They gummint may not say they are "prisoners of war" in one breath and the next breath claim they are not.

["Bart"]: ... However, these unlawful enemy combatants easily fit within the generic definition of POW.

What "generic definition of POW"?

[hip cat hobbes]: (Note also that Schiever was decided abut 150 years before the III G.C. was signed. In those 150 years, the idea of treating prisoners of war humanely developed substantially.)

["Bart"]: That is true. However, during the centuries between the King's Bench decisions and Rasul, neither the United States nor Britain ever extended habeas corpus to enemy POWs.

This has been refuted many times. Simply repeating an assertion is not proof.

[hip cat hobbes]: Moreover, note that Schiever's counsel "urged that it would be very hard upon this man, to be kept in prison here, until exchanged by cartel..." In this sense, a "cartel" is "a written agreement relating to the exchange or ransom of prisoners, etc.; such exchange itself," Oxford English Dictionary definition, sense 3.a., or also "a ship commissioned in time of war to exchange the prisoners of any two hostile powers..." William Falconer, An universal dictionary of the marine 1769 (cited by OED definition, sense 3.b.).

["Bart"]: Military history was a professional requirement when I served and is now an ongoing hobby. I am well aware that the Europeans of this time routinely paroled captured soldiers on promises that they would not rejoin the war. Keeping prisoners was simply too expensive. However, I hope you are not suggesting that we can trust al Qaeda's word of honor that their terrorists would not be sent out to murder our citizens again.

Nice "straw man". No one is suggesting this.

[hip cat hobbes]: At the end of hostilities, prisoners get transferred back to their home countries. In the case of the "war on terror," in which the length of hostilities is indefinite, the suspected terrorists may never get transferred back.

["Bart"]: That is true. So long as the enemy keeps warring against us, their captures stay detained....

More accurately, as long as we keep warring against them. I have no problem with keeping security risks detained for the duration of combat in a war. But we are not at war (nor, do I think, should we permit such intrusions on civil liberties absent such a state).

... Your other alternatives are to release the Captures so they can rejoin the jihad ...

... or so they can go home to their wives and families...

.. or we can execute the captures as unlawful combatants like we did from the Revolution to WWII.

This has been hashed out before. Your cite has been shown to be garbage.

If they are "unlawful combatants", try them for breaking whatever law you think they broke, and if the punishment specified for their particular crimes is execution, so be it. OTOH, if they are innocent of such, then let them go. It's not that hard. Summary execution may be "easier" (for you, that is), but it's hardly more legal, and arguably less so. In fact, summary execution was looked down on by the Allied powers in the wake of WWII, and more than one person swung for such travesties of law.

[hip cat hobbes]: The fact that some detainees may be innocent only compounds this concern. (Aren't you a defense lawyer? Don't you believe in the presumption of innocence? Or is that available only to the citizens of Colorado Springs?)

["Bart"]: POWs are not criminal defendants unless they are tried for war crimes....

POWs are not POWs unless they are found such in a hearing. But FWIW, prior to such hearings they are to be legally treated as POWs.

... Their due process is a formal combatant status hearing, ...

... which the maladministration has resisted despite treaty obligations to do so.

... which is far more than unlawful enemy combatants received for most of our history.

Not true. But immaterial, as the Geneva Conventions are of recent provenance.

But I note the elision from "POW" to "unlawful enemy combatant". "Bart" once again assumes his conclusion in a fine display of circulus in demonstrando.

[hip cat hobbes]: Even if you think the Bush administration erred in not classifying the suspected terrorists as POWs, they did not, and it is not within the cognizance of the court to ascribe that status to them when the executive has chosen a different standard. For this argument, see Eric Posner and Adrian Vermeule, Terror in the Balance 17 (2007) ("...our view counsels courts to provide high deference during emergencies, as courts have actually done...") (disclosure: my advisor's book, although I disagree with the book's arguments). Although I haven't really thought about this, my gut reaction is that you are asking a court to be fundamentally "activist" to call a suspected terrorist a POW when the executive has explicitly rejected that designation.

["Bart"]: I never claimed that the United States erred in not extending Geneva Conventions protections to unlawful enemy combatants which do not fit the definition....

"Talk to the hand", "Bart". That's not what "hip cat hobbes" said. He said that the maladministration had not designated these people as "POWs" (which is the peg you hung your hat on WRT whether they were due a habeas hearing).

... However, I agree with your authority that holds that the courts generally defer to the military's expertise in this area.

[hip cat hobbes]: Either way, you are repeatedly and fundamentally misrepresenting the question being posed by the Gitmo detainees' counsel. They are not asking the Court "to determine if the [Executive] had properly designated them as" enemy combatants...

["Bart"]: That is precisely the distinction being made with Schiever and Three Spanish Sailors. Both of these cases expressly hold that POWs do not have habeas corpus rights....

That's disputed as well. You simply go on with your "proof by repeated assertion". But out with it: Where do these cases "expressly hold that POWs do not have habeas corpus rights"? Make sure you differentiate between a right to have a writ issued freeing someone from custody, and the habeas corpus right to have the prisoner produced and demand that the gummint show the legality of their imprisonment.

["Bart"]: ... In order to get around that rather large hurdle, the petitioning attorneys are claiming that the King's Bench conducted a habeas review of whether the petitioner was properly designated as a POW simply because the court read the petitioner's affidavit....

... and the affidavits of other prisoners and the arguments of their counsel. Gee, sounds like they looked at the evidence and the law.

... Read the petitioner's briefs on these cases.

Quote the petitioners' briefs on these cases to support your assertion that the petitoners "are claiming that the King's Bench conducted a habeas review of whether the petitioner was properly designated as a POW simply because the court read the petitioner's affidavit...."

[hip cat hobbes]: ...but are rather asking a more basic question. As the Boumediene court notes, "[t]he first question is whether the MCA applies to the detainees’ habeas petitions. If the MCA does apply, the second question is whether the statute is an unconstitutional suspension of the writ of habeas corpus." Boumediene v. Bush, no. 05-5062b, slip op. at 9. This is emphatically not the same question as what you frame it as.

["Bart"]: Sure it is.

["Bart"]: The Suspension Clause is generally considered to have incorporated the common law habeas corpus right as it existed in 1798 into the Constitution. It is this right that Congress may not suspend expect in cases of invasion or rebellion.

"at a minimum"

["Bart]: Thus, the question is whether foreign POWs enjoyed a habeas corpus right to challenge their wartime detentions in 1798. Schiever and Three Spanish Sailors are key to answering this question.

As they manifestly did. In court.

[hip cat hobbes]: But the question, "are the detainees at Guantanamo Bay being held lawfully" is a logically distinct question from, has "the [Executive] ... properly designated them as" enemy combatants.

["Bart"]: Perhaps, but the Gitmo detainees are making the latter argument....

Ummm, no. There is no fact basis for answering that question before the court, in the briefs or in the record. They're asking to be let in the door to make that case (which is a privilege afforded to Schiever and the Spanish sailors).

["Bart"]: ... If they concede their status as enemy combatants, then they are not in a position to challenge their detentions for the duration of the war.

And if the moon was made of bleu cheese, France would be funding all of Aerospatiale. Was there some point to this?

["hip cat hobbes"]: While I agree that for someone who is an admitted prisoner of war, "on his own shewing," 97 Eng. Rep. at 552, the writ does not apply, that review must be open to someone who challenges that designation.

["Bart"]: You are making a policy proposal, not providing an analysis of Schiever....

No. He's making a distinction between "review" and "relief". A distinction that escapes you, surprisingly enough for a suposed lawyer. It's like having standing to make a claim and get into court versus having the jury agree with you.

... Schiever never provided such a review and the petitioners are misrepresenting the holding when they claim the King's Bench did perform such a review.

This is in dispute. Your "selective" quotes do nothing to prove your case. The lack of any "holding" that the courts simply have no jurisdiction to hear such a case and the fact that the opinions did mention the evdence in the record belies your jurisdictional argument WRT the reach of court habeas review in such cases.

["Bart" quoting Schiever]: 2) But the Court thought this man, upon his on shewing, clearly a prisoner of war, and lawfully detained as such.(a) Therefore, they Denied the motion.

[hip cat hobbes]: Thoughtful (misleading?) of you to omit that footnote, (a), which reads: "(a) Qu. For as he was the subject of a neutral prince and was in the French service by compulsion against his own will? Qu. Whether when he was taken the last time by the English, he was to be considered not as an enemy, but as the subject of a neutral prince, and therefore not as a lawful prisoner of war?"

["Bart"]: I was curious where you obtained that extra language.

This extra langauge is not in the pdf scan of the actual reporter provided by justis.com. This reporter goes directly from "Denied the motion" to the case of Rex v. Pigram.

I doubt that these questions would have followed the holding of the court. Opinions begin, not end, with the questions presented....

"Bart" assumes that opinions from 18th century England follow the same form as opinions from 20th century U.S. courts. "Bart" needs to read some British opinions (and even some of the older U.S. opinions), where the opinions are more free-form, stream of consciousness.... Sometimes exasperating, sometimes opaque, but nevertheless, they didn't write like the U.S. judges do today....

... This sounds like commentary or even law school questions. What was your source of the Schiever opinion?

I think he told you:

"Procrastinating from studying for a final, I went upstairs and checked out the set of English Reports the library has. I would note that, as far as I can tell, any federal court library should have the full set of English Reports. These libraries are open to the public and to bar members (see, e.g., the Seventh Circuit library, http://www.lb7.uscourts.gov/access.htm), so all the “practicing attorneys” who post in the comments should take notice and try doing some research to back up their assertions."

[hip cat hobbes]: 3) Finally, I think you are also misreading how the detainees' counsel is representing this case. From the amicus brief: "Alleged enemy aliens could also challenge the factual basis of their commitment on habeas to ensure it was within the bounds prescribed by law. Three Spanish Sailors’ Case, 96 Eng. Rep. 775 (C.P. 1779) (examining affidavit detailing facts supporting petitioners’ release, but concluding that, “upon their own showing,” they are alien enemies) (emphasis added); accord R. v. Schiever, 97 Eng. Rep. 551 (KB. 1759)." Amicus Brief of British and American Habeas Scholars, Boumediene v. Bush, 9/8/05, at 4 (italics in original, bold added). They are not saying that Three Spanish Sailors or Schiever are precedent that POWs are entitled to habeas relief. They are saying that those cases are precedent that POWs are entitled to have their cases reviewed, including "prob[ing] the return and examined additional evidence submitted by both sides to ensure the factual and legal sufficiency of the commitment.

["Bart"]: This is a distinction without a difference. The only reason to conduct habeas review is to obtain habeas relief....

No. Let me clarify: "The only reason to petition for habeas review is to obtain habeas relief." If you don't want to obtain the relief, it would be foolish to ask for it. That's pretty obvious. Here's another sentence: "The only reason to review habeas petitions is to obtain or to deny habeas relief." It you aren't going to make a substantive and effectual decision on the merits, there's no reason for reviewing the case. That's also obvious. Note how "Bart" misstates the case here.

If, as "Bart" dishonestly insinuates here, the only reason for hearing a habeas petition would be to come to the prerequisitely necessary conclusion that relief must be obtained, then what would be the purpose of the hearing? But then again, "Bart"'s confusion here is not too surprising seeing as he's also of the curious opinion that "unlawful enemy combatants" deemed a priori as such don't need a trial or hearing to determine this. "Sentence first, verdict afterwards", in the famous words of C.L. DOdgson.

... However, the King's Bench in Schiever and Three Spanish Sailors expressly denied habeas relief to POWs....

... but not review.

... Consequently, the Gitmo petitioners have to make the silly argument that you can have habeas review without habeas relief.

But that's true. See above. There would be no point to "review" if "relief" was guaranteed in advance.

[hip cat hobbes]: Back to finals.

["Bart"]: :::smile:::

Stop using this place as an excuse not to study. Go forth and ace your exams.

Good luck.

I'd say that someone whose 'scholarship' is this bad ought to avoid condescension.